Tài liệu Constructing Civil Liberties Discontinuities in the Development of American Constitutional

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Constructing Civil Liberties

Discontinuities in the Development of

American Constitutional Law

The modern jurisprudence of civil liberties and civil rights is best under￾stood not as the outgrowth of an applied philosophical project involv￾ing the application of principles to facts, but as a developmental prod￾uct of diverse, institutionalized currents of reformist political thought.

This book demonstrates that rights of individuals in the criminal jus￾tice system, workplace, and school were the endpoint of a succession of

progressive-spirited ideological and political campaigns of statebuild￾ing and reform. In advancing this vision of constitutional development,

this book integrates the developmental paths of civil liberties law into

an account of the rise of the modern state and the reformist political

and intellectual movements that shaped and sustained it. In doing so,

Constructing Civil Liberties provides a vivid, multilayered, revisionist ac￾count of the genealogy of contemporary constitutional law and morals.

Ken I. Kersch is assistant professor in the Department of Politics

at Princeton University. He is recipient of the American Political Sci￾ence Association’s Edward S. Corwin Award (2000). His articles have

appeared in Political Science Quarterly, Studies in American Political De￾velopment, The Public Interest, and The Washington Post. He is the au￾thor of Freedom of Speech: Rights and Liberties Under the Law (2003)

and The Supreme Court and American Political Development (2005, with

Ronald Kahn).

i

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For Barbara and Robert Kersch, and

In memory of Sylvia Schillinger

ii

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Constructing Civil Liberties

Discontinuities in the Development

of American Constitutional Law

KEN I. KERSCH

Princeton University

iii

cambridge university press

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press

The Edinburgh Building, Cambridge cb2 2ru, UK

First published in print format

isbn-13 978-0-521-81178-1

isbn-13 978-0-521-01055-9

isbn-13 978-0-511-21156-0

© Ken I. Kersch 2004

2004

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This publication is in copyright. Subject to statutory exception and to the provision of

relevant collective licensing agreements, no reproduction of any part may take place

without the written permission of Cambridge University Press.

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guarantee that any content on such websites is, or will remain, accurate or appropriate.

Published in the United States of America by Cambridge University Press, New York

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Contents

Acknowledgments page vii

1 Introduction 1

The Disintegration of the Historical Conditions That Produce

Whiggish Constitutional Histories 5

Toward an Affirmative Theory of Constitutional Development

in the New American State 11

A Note on Periodization 13

Cases: Three Sites of the Construction of Civil Liberties in the New

Constitutional Nation 17

Toward a Genealogy of Contemporary Constitutional Morals 25

2 Reconstituting Privacy and Criminal Process Rights 27

Introduction 27

The Project of Legibility, the Fourth and Fifth Amendments,

and the New American State: Introduction 29

Federal “Street Crime” Criminal Process Rights and the Reintegration

of the Southern Periphery into the National Core 66

The Next Reformist Campaign: Prohibition 72

Incorporation and the Black-Frankfurter Debate 84

From Prohibition to Race: The Nationalization and Standardization

of Police Procedures 88

The Waning of Fourth and Fifth Amendment Rights in Service

of the New Administrative State 112

Race and the Warren-Era Criminal Process Revolution: The March

of Domestic Atrocities 121

Conclusion 132

3 Reconstituting Individual Rights: From Labor Rights

to Civil Rights 134

Introduction 134

v

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vi Contents

Labor Individualism and Liberty: The Traditional Ideological

Benchmark 137

From Calling to Class: The Ideological Construction of the Union

Worker 143

Civil Rights and Labor Rights: Constitutional Progress Creates

a New Barrier 188

New Restraints on Civil Liberties in the Interest of (Reconstituted)

“Civil Rights” 226

Conclusion 233

4 Education Rights: Reconstituting the School 235

Introduction: The Absence of Education from Narratives of American

Statebuilding 235

Education and the American State before the Statebuilding Era 237

Education in the Statebuilding Era: The Social Construction of

Autonomous Intellectual Inquiry and the American State 249

Reviving the Progressive Vision after the Lean Years:

The Opportunities of the Crash 277

Court and Classroom in the Mid-Twentieth Century: The New State

and the New Pluralism 283

The Limits of Peace: Progress Through Contention 325

Conclusion 336

5 Conclusion 338

The Rise of Global or World Constitutionalism 341

Integrating the United States into the Global Constitution: How

Lawyers and Judges Can Help 348

Conclusion: Constructing Civil Liberties in the New

Constitutional Nation 359

List of Cases 363

Index 371

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Acknowledgments

Wis✱

lawa Szymborska has described as “Fortune’s darlings” those blessed

enough to endlessly discover new challenges in their work, and thus to

experience it as an ongoing adventure. I am clearly one of Fortune’s dar￾lings. The start of my good fortune was to have landed for graduate school

in the government department at Cornell University, where the faculty en￾couraged me to ask and pursue big and interesting questions about politics.

From the beginning, Ted Lowi, Richard Bensel, Isaac Kramnick, and Jeremy

Rabkin guided my studies at Cornell and my work on this project. As I see

it, this book is part of an ongoing conversation between me and each of

these wonderful teachers, and among them. I have also been extremely for￾tunate after moving on from Cornell in finding colleagues and friends whose

voices were added to this conversation and whose curiosity and sense of

intellectual adventure have contributed immeasurably both to my thinking

and to my continued delight in my work. Ron Kahn and Keith Whittington

have become particularly valued friends and close intellectual companions.

They have read multiple versions of this manuscript and have discussed it

(and much else besides) with me at length. Clem Fatovic, Howard Gillman,

Mark Graber, Scot Powe, Rogers Smith, and an array of anonymous readers

spent a considerable amount of time with earlier versions of the manuscript

and provided extensive, extremely helpful critiques. In addition, many gen￾erous and thoughtful people have read parts of the manuscript and offered

highly useful criticisms and suggestions: Herman Belz, Matt Berke, Stephen

Bragaw, Tom D’Andrea, Dan Dreisbach, Paul Frymer, Robert George,

Lambert Gingras, Dennis Hutchinson, Larry Mead, Stephen Monsma, Alex

Moon, Wayne Moore, Andy Moravscik, John Mueller, Carol Nackenoff,

Julie Novkov, Grier Stephenson, Jim Stoner, and Art Swenson. I have also

benefited over the years from related conversations with Jonas Pontusson,

Elizabeth Sanders, Martin Shefter, and Sid Tarrow. Peter Fish and Murray

Dry read the dissertation and provided encouragement and a sustaining

vote of confidence at precisely the moment that it was needed. Paul Frymer,

vii

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viii Acknowledgments

Marie Gottschalk, Mike Klarman, Kevin Kosar, George Lovell, Karen Orren,

and Stephen Skowronek kindly shared informative work in progress. Gener￾ous financial assistance was provided by the Andrew W. Mellon Foundation,

the Russell Sage Foundation, Cornell University, the Princeton University

Politics Department, Wiley Vaughan, and The James Madison Program in

American Ideals and Institutions at Princeton (where I was the inaugural

Ann and Herbert W. Vaughan Fellow during the 2001–2 academic year).

The Madison Program provided me with a leave that not only gave me time

to write, but also brought me into regular contact with a host of wonder￾fully informative, inquisitive, and friendly people who shaped this work in

more ways than I could possibly describe. The Princeton Politics Depart￾ment and its chair, Jeff Herbst, were unstinting in their support. It is hard to

imagine a more stimulating environment in which to work. Lew Bateman at

Cambridge University Press and Norrie Feinblatt provided expert editorial

assistance. Clem Fatovic; James Goldman; Ted Holsten; Martin Krusin; Dan

Peris; Bhamati Viswanathan; my students at Cornell, Lehigh, and Princeton;

and the brothers at Lehigh’s Phi Kappa Theta fraternity were bottomless

sources of enthusiasm and encouragement.

The support and love of my parents, Barbara and Robert Kersch, have

been steadiest and deepest of all. I dedicate this book to them, and to the

memory of my grandmother, Sylvia Schillinger.

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1

Introduction

This is a book about the paths of constitutional development culminating

in the U.S. Supreme Court’s landmark civil liberties and civil rights jurispru￾dence of the 1960s and 1970s. The roads to Mapp v. Ohio (1961) (search

and seizure/privacy), University of California Board of Regents v. Bakke (1978)

(affirmative action), Engle v. Vitale (1962) (separation of church and state),

and other emblematic decisions marking the high tide of twentieth-century

constitutional liberalism, I argue here, should be understood not as the is￾sue of a single, linear and unidimensional path marked by the post–New

Deal Court’s newfound willingness to protect “personal” (as opposed to

“economic”) rights and liberties, and tracing out the implications for par￾ticular fact scenarios of abstract principles such as “privacy,” “liberty,” or

“equality.” These doctrinal landmarks are, rather, the diverse endpoints of a

layered succession of progressive spirited ideological and political campaigns

of statebuilding and reform. In the heat of these campaigns – whose center

was typically outside the Court – it was apparent to the participants that

key rights and liberties conflicted, and the meaning of both was contested.

As such, it was understood by those animated by a strong substantive vision

that some key rights and liberties would have to be jettisoned or circum￾scribed to advance others. Only after these campaigns succeeded, as part

of the process of ideological institutionalization, were backwards-looking

narratives created – off the Court and on – that worked to legitimate these

achievements as rights-protecting triumphs and part of a linear, teleological

march of progress.1

The narrative of constitutional development concerning rights and liber￾ties that I characterize as backwards-looking pivots around the centerpoint

of the New Deal. That narrative has shaped the agenda for constitutional

scholars for most of the last century. One of its most significant characteristics

1 Mapp v. Ohio, 367 U.S. 643 (1961); Regents of the University of California v. Bakke, 438 U.S.

265 (1978); Engel v. Vitale, 370 U.S. 421 (1962).

1

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2 Introduction

was that the developmental trajectory it imagines – a linear, teleological tra￾jectory of barrier, breakthrough, and apotheosis – was highly court-centered.

As such, it launched a raft of court-centered constitutional scholarship whose

questions were framed by the pull of the narrative. At the core of this work

were questions concerning judicial review, judicial activism, and judicial re￾straint. Since the reformers who made this constitutional revolution (chiefly

Progressives and New Dealers) were at first outsiders to the role of shaping

legal doctrine, they began their careers as critics of court power. Once they

took hold of the reins of state and began to staff the courts themselves, how￾ever, the scholarship shifted, and they began to ask new and multi-layered

questions that reflected this developmental sequence. Rather than simply de￾crying judicial review and judicial activism, their new task was to remain at

least rhetorically consistent with the views on which their newfound power

had been won, while moving, in turn, to justify both. This involved the for￾mulation of new constitutional theories that set out in nuanced ways why

judicial review and judicial activism were justified in some circumstances (for

ends that they approved) and not others (for ends that they opposed).

This new constitutional thinking began by stipulating a level of statism that

was foreign (or fundamentally antagonistic) to the old constitutionalism.

And it posited a new imperative involving the protection of civil liberties

and civil rights. Structured as it was, the new constitutional scholarship was

in its very sinews heavily implicated in the political project of justifying, insti￾tutionalizing, and (as conditions worked to decay its foundations) defending

the New Deal constitutional regime.

In pivoting around barrier, breakthrough, and apotheosis, the founda￾tional narrative of constitutional development I describe above – what I

will call the “traditional narrative” – is a paradigmatic example of “pro￾gressive” history. And, indeed, this should hardly be surprising, as it is di￾rectly related to the work of the great progressive historians themselves,

such as Charles Beard and Vernon Parrington, who served as the advance

guard for the reformist program later institutionalized in the New Deal.2

It is also a paradigmatic example of Whig history. Such histories, as histo￾rian Herbert Butterfield has described them, endeavor to cut “a clean path

through ... complexity” through “an over-dramatization of the historical

story” that pits the forces of progress against the forces of reaction. The

historical task of the former is to remove the “obstructions” that are ei￾ther thrown up by or defended by the latter. The Whig historian, Butterfield

2 Charles A. Beard, An Economic Interpretation of the Constitution of the United States (New

York: Macmillan, 1913); Vernon Parrington, “Introduction,” in J. Allen Smith, The Growth

and Decadence of Constitutional Government (New York: Henry Holt and Co., 1930). See

William J. Novak, “The Legal Origins of the Modern American State,” in Looking Back at

Law’s Century: Time, Memory, and Change, eds. Austin Sarat, Robert Kagan, and Bryant Garth

(Ithaca, NY: Cornell University Press, 2002), 249–60.

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Introduction 3

writes, “very quickly busies himself with dividing the world into the friends

and enemies of progress.”3

Far from rendering narratives concerning historical trajectories implau￾sible, the Whig approach is enormously seductive. Indeed, Butterfield con￾cludes “[t]he truth is that there is a tendency for all history to veer over into

Whig history” to the point where “it has been easy to believe that Clio herself

is on the side of the Whigs.” What is so seductive about Whig histories is that

they are paeans to the illumination and glory of the present. Whig histories

of the New Deal and the gradual achievement of court-protected civil rights

and civil liberties have been so successful because, despite the anachronis￾tic (and romantic) understanding of many of their purveyors as perpetual

outsiders, in fundamental and gratifying ways they reflect and reinforce the

discourse of power in contemporary thinking concerning twentieth-century

American constitutional development.4

To say that constitutional thinking for most of the last century was written

under the intense gravitational pull of the New Deal revolution is not to say

that these histories are false in any broad sense or failed to yield important

evidence and insights concerning the trajectory of American constitutional￾ism. After all, there was in fact a New Deal standoff. And it is undeniable

that the agenda of the Supreme Court prior to the New Deal was different in

important ways from the Court’s agenda after it. Nor is it to gainsay that dur￾ing the heyday of Whiggishness many detailed historical studies were written

that effectively steered clear of the snares and perils of Whiggism. But in his

anatomy of Whig histories, Butterfield himself noted that “[I]t is true that

this tendency is corrected to some extent by the more concentrated labors

of historical specialists.” Nonetheless, he properly concluded, the tendency

to Whig history is “so deep-rooted that even when piece-meal research has

corrected the story in detail, we are slow in re-valuing the whole and reor￾ganizing the broad outlines of the theme in light of these discoveries.” There

remains a persistent “tendency to patch the new research into the old story

even when the research in detail has altered the bearings of the old subject.”5

My contention in this book is that “research in detail” – my own (as

presented here) and that of an ever-growing body of others (including Mark

Graber, David Rabban, and G. Edward White’s on the freedom of speech;

Philip Hamburger’s and John T. McGreevy’s on the separation of church

and state; David Bernstein’s on the relationship between the state, the labor

3 Novak, “Legal Origins of the Modern American State,” 258 (referring to “the classic pro￾gressive trope: law as obstruction”). Herbert Butterfield, The Whig Interpretation of History

(New York: W. W. Norton, 1965), 5, 29, 34. 4 Butterfield, Whig Interpretation, 6, 8. 5 Butterfield, Whig Interpretation, 5, 6. See also Paul Pierson, “Increasing Returns, Path De￾pendence, and the Study of Politics,” American Political Science Review 94 (June 2000): 251–

67, 260 (“understandings of the political world should themselves be susceptible to path

dependence”).

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4 Introduction

movement, and civil rights; Diane Ravitch’s on progress in education;

Kenneth Murchison’s on prohibition; and Michael Klarman, Hugh Davis

Graham, and John David Skrentny’s on civil rights) has now accumulated to

such an extent that it fundamentally undermines the plausibility of the third

stage of the Whiggish New Deal constitutional narrative, and, in the process,

of the entire narrative itself.6 That third stage, involving the “end” – or the

apotheosis – imagines what many today, under the pull of a still prevalent

Whiggishness, would continue to call “civil rights and civil liberties,” as the

essence of the thing itself. Put otherwise, it sees the apotheosis as a “matter

of principle.”7

This book, in the spirit of the works cited above – which, in the nature of

things, is a revisionist spirit – aspires, in a context long set by the pull of New

Deal constitutional Whiggism, to unsettle our wonted assumptions. It does

so by jettisoning the faith that the idiosyncratic and fundamentally contested

policy end points that traditional legal scholars and political scientists dub

“civil rights and civil liberties” represent in any broad sense an apotheosis of

progress over reaction or the triumph of principle as if this were part of an

6 David M. Rabban, Free Speech in Its Forgotten Years (Cambridge: Cambridge University Press,

1997); Mark A. Graber, TransformingFreeSpeech:TheAmbiguousLegacyofCivilLibertarianism

(Berkeley: University of California Press, 1991); G. Edward White, “Free Speech and the

Bifurcated Review Project: The ‘Preferred Position’ Cases,” in Constitutionalism and American

Culture: Writing the New Constitutional History, eds. Sandra VanBurkeo, Kermit L. Hall, and

Robert J. Kaczorowski (Lawrence: University Press of Kansas, 2002), 99–122; G. Edward

White, “The First Amendment Comes of Age,” Michigan Law Review 95 (1996): 299–392;

Philip Hamburger, The Separation of Church and State (Cambridge, MA: Harvard University

Press, 2002); John T. McGreevy, Catholicism and American Freedom: A History (New York:

W. W. Norton, 2003); David E. Bernstein, Only One Place of Redress: African Americans,

Labor Regulations, and the Courts, from Reconstruction to the New Deal (Durham, NC: Duke

University Press, 2001); Diane Ravitch, Left Back: A Century of Failed School Reforms (New

York: Simon and Schuster, 2000); Kenneth M. Murchison, Federal Criminal Law Doctrines:

The Forgotten Influence of National Prohibition (Durham, NC: Duke University Press, 1994);

Michael Klarman, “Rethinking the Civil Rights and Civil Liberties Revolutions,” VirginiaLaw

Review(February 1996): 1–67; Hugh Davis Graham, CollisionCourse:TheStrangeConvergence

of Affirmative Action and Immigration Policy in America (New York: Oxford University Press,

2002); John David Skrentny, The Ironies of Affirmative Action: Politics, Culture, and Justice in

America (Chicago: University of Chicago Press, 1996); John D. Skrentny, The Minority Rights

Revolution (Cambridge, MA: The Belknap Press of the Harvard University Press, 2002). See

also Eileen L. McDonagh, “The ‘Welfare Rights State’ and the ‘Civil Rights State’: Policy

Paradox and Statebuilding in the Progressive Era,” Studies in American Political Development

7 (Fall 1993): 225–74; Ken I. Kersch, “The Reconstruction of Constitutional Privacy Rights

and the New American State,” Studies in American Political Development 16 (Spring 2002): 61–

87; Karen Orren and Stephen Skowronek, “What is Political Development?” paper presented

at annual meeting of the American Political Science Association, San Francisco, California,

August 29 – September 2, 2001. 7 See Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985).

See also Bruce Ackerman, We the People: Foundations (Cambridge, MA: The Belknap Press of

the Harvard University Press, 1991).

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Producing Whiggish Constitutional Histories 5

ineluctable trajectory of history. In the absence of and in place of this faith,

this book offers a series of empirical interpretive case studies involving three

illustrative sites of constitutional order concerning constitutional rights and

liberties – criminal process rights concerning privacy, workplace and labor

rights, and civil liberties and civil rights in education – each culminating

roughly (depending on the nature of the trajectory under study) with the

Warren Court (1953–69) apotheosis, which the most influential scholars in

the field have taken to be the high water mark of a judicial solicitude for civil

rights and civil liberties. By taking a developmental approach that purposely

rids itself of the gravitational pull of the Whiggish New Deal narrative (which

many developmental histories do not) I offer, as a substitute for the field’s

wonted moralism and Whiggism, a sustained contemplation of the genealogy

of contemporary constitutional morals.8

The Disintegration of the Historical Conditions that Produce

Whiggish Constitutional Histories

While the traditional Whiggish narrative of contemporary rights and

liberties – and the questions it perpetually throws up in legal scholarship –

still defines the field, it is not nearly as predominant as it once was. In￾deed, it is this decomposition in plausibility that has made possible both this

study and other revisionist accounts of contemporary civil rights and civil

liberties. Signs of the disintegration of the Whig narrative are apparent even

in the work of leading constitutional Whigs such as Bruce Ackerman and

Akhil Amar, who, for example, have both been influenced by the cyclical

and decidedly non-progressive critical elections realignment theory of politi￾cal scientists such as Walter Dean Burnham.9 Although both Ackerman and

Amar fashion teleological constitutional narratives that reach their apotheo￾sis in contemporary constitutional liberalism, their pointed rejection of what

Ackerman calls “the bicentennial myth” – which holds that the meaning of

8 See Wendy Brown, Politics Out of History (Princeton: Princeton University Press, 2001), 91–

120. See also Richard A. Posner, Problematics of Moral and Legal Theory (Cambridge, MA:

The Belknap Press of the Harvard University Press, 1999). For the developmental accounts

that laid the groundwork for this study by analyzing periodized trajectories of constitutional

development, but (as I see it) in their structure remain vestigially wedded to the Whiggish (and

moralizing) New Deal narratives, see Ackerman, We the People; Howard Gillman, “Preferred

Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties

Jurisprudence,” Political Research Quarterly 47 (September 1994): 623–53; Howard Gillman,

“Political Development and the Rise of the ‘Preferred Freedoms’ Rubric in Constitutional

Law,” paper presented at the University of Maryland Constitutionalism Discussion Group,

College Park (April 2002). 9 Bruce Ackerman, We the People: Foundations; Akhil Reed Amar, The Bill of Rights: Creation

and Reconstruction (New Haven: Yale University Press, 1998); Walter Dean Burnham, Critical

Elections and the Mainsprings of American Politics (New York: W. W. Norton, 1970).